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Monday, September 12, 2016

TheSmall
Business Administrationestimates at least half of all new businesses fail
within the first five years, and only about one third of new businesses last
ten years. The major factors which play in to the high failure rate of
small businesses include a variety of economic and operational risks which are
faced to one degree or another by every business. In cases where those
inherent risks of operating a small business are compounded with legal
mistakes, the chances of business failure rises significantly. Below is a
list of ten of the most common mistakesour firm sees when we consult with new
businesses.

1. Doing business without a corporate entity.

In more instances than you would believe, small business owners
start conducting business without first forming a business entity. Each
case is different, some are afraid of the expense. Some think they can
sidestep the tedious corporate formalities. Some don’t realize the
purpose of creating a business entity and some people feel like corporate
structure is only for “big” business. Like it or not, the reality is that
EVERY business doing business in Florida (ie. domestic and foreign) needs to register
a corporate entity with theFlorida
Division of Corporations, if for no other reason, than to protect
your personal assets from your business liabilities.

2. Lack of a business plan.

Every business should have a business plan. Unfortunately,
the vast majority of business plans are hardly worth the paper they're
printed on. It is not uncommon to see plans that are sloppy, poorly
written or incomplete. A good business plan presents an overview of the business in
both the short and long term. It should explain how you will get from
point A to point B. The plan should be a "roadmap" for your
business. It should contain attainable milestones and targets and layout the
steps you need to reach those goals.

3. Outside investors.

Many small business owners
bring in outside investors when they are desperate for cash.
Shortly thereafter, the investor gets impatient and begins clamoring for a
return on his investment. This almost invariably leads into a dispute between
the owner and investor as to how to operate the business, which ultimately ends
up in a lawsuit. To a prudent business owner, the identity and character
of the investor is as important as how much money they are willing to invest.
The bottom line -- choose investors very, very carefully.

4. Failure to do a shareholder or buy/sell agreement.

Every small business with more than one owner needs a shareholder
or buy/sell agreement. This type of document specifically lays
out how the business will operate, how the owners will govern the
business, management, voting rights, profit-sharing, new owners or investors,
succession plans and perhaps most importantly, how dispute between owners will
be resolved. It is more likely than not the ownership group of the
business will expand or change and, much like a will that provides for an
orderly disposition of assets upon death, having a well-considered agreement
among the owners can head off or limit disputes down the road and promote
harmony among the owners.

5. Treating Independent
Contractors as Employees

Many startup businesses
make use of independent contractors, and with good reason. They provide
the ability to get tasks completed and don’t tie you to the requirements that
come with having employees. Use caution in how you deal with independent
contractors. TheIRS provides detailed informationand a multiple point test to determine whether the independent
contractor you’ve hired is actually a W-2 employee in disguise. It is important
to review that test and understand the legal risk and consequences of not
complying with the rules related to independent contractors.

6. Using Online Contracts

Many
business owners seek to skimp on legal services using contract templates they
find online. For small things like
maybe advancing an employee an extra week salary, online contracts can be
fine. However, for anything which could have more drastic consequences
down the line, contract templates are not a good idea at all. Worse yet
are those business owners who believe they are sophisticated enough to cut and
paste clauses from several different online contracts. In most instances,
enforcing these types of contracts is a very difficult and expensive
prospect. Online contracts are generic contracts. They do not take
in to account the unique circumstances which exist in almost every contractual
relationship, and such contracts almost always filled with legal
loopholes. The sad part is those legal loopholes can be closed by
an experienced
attorney for a couple hundred dollars. Instead,
the business owner winds up spending thousands of dollar litigating the meaning
of ambiguous terms. In short, the internet can make you feel like
you are an expert, but you aren’t. Find a local experienced attorney or
eventually you will be reminded of the old adage, “you get what you pay for”.

7. Signing personal guarantees.

In almost any new business, access to credit is conditioned upon a
business owners personal guarantee for the loan. The reason for this
is simple, new businesses do not have the resources to repay a loan.
Unfortunately, many business owners do comprehend the potential negative impact
of guaranteeing their company’s debts, or personally guaranteeing other
contractual obligations. If you are one of the 50% of all small businesses
that fail within the first five years, you are on the hook for all the debt the
company incurred. The potential hardships are obvious, and drive many
people to bankruptcy.

8. Failure to avoid costly litigation.

As abusiness litigator,take it from me, litigation is expensive and causes a
significant drain on the time and efforts of the business owner and any
involved employees. I always council my clients that business litigation
should only be considered as a last resort. Before getting involved in
litigation, any small business should try to temper the emotions that are
caused by a dispute and consider the costs and benefits of the litigation, just
like they would any other business decision, and determine any collateral
effects of the litigation as well.

9.Talking trash about their
competition.

The temptation for small
businesses to talk trash about their competitors publically or anonymously on
the web is growing. Be careful not to libel them. What to do: Seek the advice
of an attorney for what is libel and what is freedom of speech.

10. Failure to consult a lawyer.

A bit of self-serving advice, to be sure, but sensible
nonetheless. Many business owners in generalresist working with attorneys mainly due to the expense — they
download contracts or incorporation documents, which is fine until there
is a problem. One a problem erupts you can generally count on spending
thousands of dollars to correct the problem which could have been averted by
spending a few hundred dollars working with an attorney who has practical
experience.

Keep in
mind this list is by no means an all-inclusive list of all the possible legal
mistakes business owners can make; just some of the most common. If you are a
business owner or have the dream of opening your own business and would like
some sound legal counsel from anexperienced team of
attorneys, the lawyers at Guy Yudin & Foster, LLP. are here to
help! Feel free to contact our business lawyers here, or give us a call at (772)
286-7372.